The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Tuesday, March 01, 2016

Justice Kagan knows that there are two Zoolander movies!

Imagine
a friend told you that she hoped to meet “an actor, director, or producer
involved with the new StarWars movie.” You would know immediately that she
wanted to meet an actor from the Star Wars cast—not an actor in, for example,
the latest Zoolander. Suppose a real estate agent promised to find a client “a
house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed
if the agent sent him information about condos in Maryland or California? And
consider a law imposing a penalty for the “violation of any statute, rule, or
regulation relating to insider trading.” Surely a person would have cause to
protest if punished under that provision for vio­lating a traffic statute. The
reason in all three cases is the same: Everyone understands that the modifying
phrase—“involved with the new Star Wars movie,” “in New York,” “relating to
insider trading”—applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and
writing alike, should decide this case. Avon-dale Lockhart is subject to a
10-year mandatory minimum sentence for possessing child pornography if, but
only if, he has a prior state-law conviction for “aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C.
§2252(b)(2). The Court today, relying on what is called the “rule of the last
antecedent,” reads the phrase “involving a minor or ward” as modifying only the
final term in that three-item list. But properly read, the modifier applies to
each of the terms—just as in the examples above. That normal construction finds
support in uncommonly clear-cut legislative history, which states in so many
words that the three predicate crimes all involve abuse of children. And if any
doubt remained, the rule of lenity would command the same result: Lockhart’s prior
conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s
mandatory minimum penalty. I respectfully dissent.

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.